Appeal from the United States District Court for the Northern District of CaliforniaD.C. No. 5:07-cr-00251- Ronald M. Whyte, Senior District Judge, Presiding
The opinion of the court was delivered by: Opinion by Judge Reinhardt
October 8, 2010-San Francisco, California
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Louis H. Pollak, Senior District Judge.*fn1
REINHARDT, Circuit Judge:
Jose Hernandez Bonilla, Jr. appeals the district court's denial of his pre-sentencing motion to withdraw his guilty plea. Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens. When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences. We hold that the district court's denial of Bonilla's motion to withdraw his plea was an abuse of its discretion.
The defendant, Bonilla, was born in Mexico in 1973 and was brought to the United States three years later. Thirty years afterward, he was indicted when police in Watsonville, California, responding to a gang altercation, observed a sawed-off shotgun in the front seat of a nearby, unoccupied car. The car belonged to Bonilla, who had previously been convicted of a felony.*fn2 His fingerprints were found on the gun, which was not registered to him. A federal grand jury returned a two count indictment charging Bonilla with possessing an unregistered firearm under 18 U.S.C. § 922(g)(1), and with being a felon in possession of a firearm under 26 U.S.C. § 5861(d).
After Bonilla's indictment, his wife, who, due to his mental health condition, sometimes speaks on his behalf, contacted an investigator at the Federal Public Defender's Office to ask whether it was possible that Bonilla could be deported in connection with his indictment. The investigator told Bonilla's wife only to contact his attorney. When she asked his lawyer at an early court appearance whether it was possible that Bonilla could be deported if he pled guilty, the attorney told her that she would look into the matter but never did, and failed to provide any information about immigration consequences to Bonilla or his wife prior to the plea hearing. At the Rule 11 colloquy, Bonilla admitted that he knew that he possessed the firearm and that it was not registered to him. He did not ask any questions of the court, and entered a plea of guilty as to both counts of the indictment without any plea agreement.
After Bonilla entered the guilty pleas, his wife again asked his lawyer about the immigration consequences of his plea. This time, his lawyer said that she would provide an answer after talking with an immigration specialist. Several days later, she told Bonilla's wife over the phone that as a result of his guilty plea, Bonilla would be deported after serving his sentence. Indeed, a conviction under either of the counts to which he pled would have constituted an aggravated felony, rendering his deportation presumptively mandatory, see 8 U.S.C. § 1227(a)(2)(A)(iii), and conviction of an aggravated felony precludes a non-citizen permanent resident like Bonilla from seeking relief from deportation. See id. § 1229b(a)(3). Bonilla's lawyer explained that she had mistakenly believed, at the time he ...